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GENOCIDE OF KASHMIRI PANDITS: RECONCILIATION AND THE WAY AHEAD

INTRODUCTION

According to the 1948 UN Genocide Convention[1], “genocide” is defined as an action intended to exterminate an ethnic population, along with the murder of its inhabitants. The systematic collective punishment of Kashmiri Pandits was compared to genocide by the National Human Rights Commission[2], which was presided over by the former Chief Justice of India, M. N. Venkatachaliah, in 1995. [3] It has been 30 years since the Kashmiri Pandit population, a minority Hindu group, “exodus” from the Valley. An interesting characteristic of the Kashmir story that has contributed to the growing Hindu-Muslim antagonism in India over the years and exacerbated the Hindu-Muslim divide in the Valley is the fiercely contested underlying reasons for their defection among both January and March 1990, the numbers, and the dilemma of their recompense. The departure occurred as the BJP increased its campaigning efforts in northern India, and over decades, the misery of Kashmiri Pandits has grown into a significant Hindutva priority.

Were The Kashmiri Pandits Victims Of Genocide?

The Kashmiri Pandits might have been the victims of genocide on two different fronts: first, by being killed, and second, by suffering severe psychological or physical injury. The following details can be used to further clarify this:

  1. Because they represented several of the 4 dimensions listed in Article II of the Genocide Convention of 1948[4], Kashmiri Pandits actually suffered. They were singled out for attack because they practised Hinduism and could be seen as a “nation” of Kashmiri Pandits in the Kashmir Valley.
  2. As was previously stated, a felony does not need to involve mass murder in order to qualify as genocide. If the act was carried out with the purpose to wipe out the group, even two fatalities are enough to qualify as genocide.
  3. Although there has not been a single death, a holocaust has been perpetrated if the aggressors are successful in causing substantial physical or psychological injury to a community with the purpose to eradicate it.

Kashmiri Pandits’ Killings In 1990

The deliberate killings of Kashmiri Pandits and Sikhs in Jammu and Kashmir during 1990 were permitted by the Supreme Court on Friday, allowing an NGO by the name of “We The Citizens” to submit a request to the Union Government for an investigation. Justices BR Gavai and CT Ravikumar [5]were on a panel that expressed reluctance to hear the case and instructed the petitioner to speak with the authorities. As a result, the petition was dismissed, giving the respondent NGO permission to bring a case to the Central Government. The motion also requested the government to direct a census of the victims who had to move to another state and now live in other areas of the nation as well as their rehabilitation.

The respondents’ attorney testified at the hearing that there had been a “mass slaughter of more than 1 lakh Hindus in Kashmir.” He based his research on Rahul Pandita’s book, “Our Moon Has Blood Clots[6],” which detailed first-hand accounts of murder, arson, and the emigration of Hindus and Sikhs from Kashmir. He claimed that the book gave in-depth accounts of the occurrence and that the creator was a casualty of the atrocities described in the book. The massacres done towards Pandits are detailed in a book written by Jagmohan, the Governor of J&K in 1990[7], which was also mentioned by the speaker.

Furthermore, he said that the administration of Jammu and Kashmir never looked into the alleged conspiracy. The defence attorney argued that until 2019, when J&K’s special status under Article 370 [8]was revoked, the Ranbir Penal Code was in effect instead of the Indian Penal Code and the Code of Criminal Procedure. As a result, no suitable legal steps have been taken in relation to the violations under the IPC or CrPC.

According to the NGO’s appeal, the attacks on Kashmiri Pandits between 1989 and 1990 constituted a “Genocide of the highest order” with the aim of purging the Kashmir valley of Hindus and Sikhs. Sikhs and Kashmiri Pandits (Hindus) have traditionally been at the vanguard of the fight against fundamentalist, communitarianism, and secessionism in Kashmir.

A revisit to history, which speaks a lot! 

Sikhs and Kashmiri Pandits (Hindus) have traditionally been at the vanguard of the fight opposing fanaticism, communitarianism, and secessionism in Kashmir. “In 1989, the last Sikhs and Hindus from Kashmir left their homeland. To rid the Kashmir valley of Hindus and Sikhs on a racial basis, this was a genocide of the highest calibre”.  The petition further claimed that the attacks in 1990 are a stark illustration of how the constitutional machinery failed to stop the genocide and safeguard the lives and property of Kashmiri Hindus and Sikhs in the Kashmir valley.

As a result, the Fundamental Rights protected by Articles 14, 19, and 21 of the Indian Constitution[9] have flagrantly violated “the petition highlighted. Despite the fact that dozens of FIRs involving the deaths of Kashmiri Hindus were lodged, they were somehow pursued to their final extreme more than 30 years later. Now, “Because of poor probes the culprits, terrorists, and anti-national have been permitted to exacerbate the rule of law inside the valley, which culminated in the migration of Hindu families from Kashmir,” the plea reads, emphasising this. As a result, those migrant families are still residing as refugees in different regions of India. As a result, their fundamental human right is being violated every day because they are unable to go back to Kashmir and settle there because of an inadequate level of security.

Legal analysis for Genocide Of Kashmiri Pandits: Reconciliation And The Way Ahead

In a 1990 appeal to the National Human Rights Commission[10], the Panun Kashmir Movement (PKM)[11]and the All India Kashmiri Samaj (AIKS)[12] demanded that the mass massacre of Hindus in Kashmir be recognised as a genocide.

According to the National Human Rights Commission’s strict interpretation of the Protection of Human Rights Act, of 1932[13], human rights are defined as the rights to life, personal freedom, inclusivity, and the person’s dignity that are enshrined in the Indian Constitution or recognised by international treaties and are upheld by Indian courts. Worldwide terms of the agreement are defined as the International Covenant on Civil and Political Rights,  the International Covenant on Financial, Interpersonal, and Contemporary Rights, and any other commandments or conventions adopted by the General Assembly of the UN that the Central Government has specified by confirmation.

According to a thorough answer from the Union of India, the Genocide Convention does not apply in this situation in India because genocide is not stated in Sections 2(d) and 2(f) of the aforementioned Act. [14]  The Panel further concluded that while India is a signatory to the Berne Convention, the relevant legislation (outlined in Article 253 of the Indian Constitution[15]) has not been passed, and Article III of the Genocide Convention does not name some crimes as being forbidden. Genocide, conspiracy to commit genocide, open and open solicitation to commit mass murder, attempt to perpetrate genocide and cooperation in genocide are all prohibited under Article III. In response, the PKM argued that genocide is an international crime and has been incorporated into natural justice, or subordinate legislation. Therefore, this offence is criminal even in the absence of specific statutory legislation as required by the Constitution. We can also mention that the judiciary is permitted by Article 517 [16]to incorporate foreign legal standards into domestic legislation. National law must be interpreted in accordance with international law, according to the norm of constitutional interpretation.

In Vellore Citizens’ Welfare Forum v. Union of India[17], the Indian judicial system assimilated the foreign notion of ecological sustainability (Stockholm Convention) into the domestic system.

Conclusion

Literally and liberal are the two primary categories of interpretation. Human rights laws and constitutional laws are given a liberal interpretation. It may also be referred to as intentional. Criminal laws can either be strictly interpreted or taken literally. It is therefore possible to draw the conclusion that the National Human Rights Commission erred when it used its recommendatory power to improve the situation of Hindus in the J&K valley. Genocide has been committed when Hindus have been targeted for death in such large numbers in the Jammu and Kashmir region. Now dispersed over the entire nation, they are dealing with severe socioeconomic difficulties. One could assert that they will never be able to return to their roots. You won’t, however, soon see an end to this obscuration on to another lifeblood they must cling to. They are without other options. No other means of surviving. The lies will continue to be spread. It will make Goebbels happy. The system is still in place.

Author(s) Name: Shreya Jha (Symbiosis law school, Hyderabad)

References:

[1]United Nations, Treaty Series, vol. 78, p. 277

[2]The Protection of Human Rights Act, 1993 as amended by the Protection of Human Rights (Amendment) Act, 2006

[3]M. N. Venkatachaliah , https://en.wikipedia.org/wiki/M._N._Venkatachaliah

[4]ar II, United Nations, Treaty Series, vol. 78, p. 277

[5]Justices BR Gavai and CT Ravikumarhttps://en.wikipedia.org/wiki/Bhushan_Ramkrishna_Gavai, https://en.wikipedia.org/wiki/C._T._Ravikumar

[6]Our Moon Has Blood Clots: The Exodus of the Kashmiri PanditsRahul Pandita illustrated, reprint, Random House India, 2013

[7]Jagmohan Malhotra, https://thelogicalindian.com/trending/jagmohan-kashmir-governor-34461

[8]Ar. 370, The Constitution of India [India], 26 January 1950

[9]Article 14,19,21 , The Constitution of India [India], 26 January 1950

[10]The Protection of Human Rights Act, 1993 as amended by the Protection of Human Rights (Amendment) Act, 2006

[11]Panun Kashmir Movement ,https://en.wikipedia.org/wiki/Panun_Kashmir

[12]All India Kashmiri Samaj (AIKS), Writ Petition (Civil) No.(S). 534 Of 2006

[13]The Protection of Human Rights Act, 1993as amended by the Protection of Human Rights (Amendment) Act, 2006

[14]Sec 2(d), 2(f), The Protection of Human Rights Act, 1993as amended by the Protection of Human Rights (Amendment) Act, 2006

[15]Ar. 253, The Constitution of India [India], 26 January 1950

[16]Ar. 517, The Constitution of India [India], 26 January 1950

[17]Vellore Citizens’ Welfare Forum v. Union of India, AIR 1996 SC 2715: (1996) 5 SCC 647